Schneider v. United States

Appeal
from the United States District Court for the Eastern
District of Wisconsin No. 15-CV-709 - William C. Griesbach,
Chief Judge.

Before
Posner, Kanne, and Sykes, Circuit Judges.

PER
CURIAM.

Darrell
Schneider pleaded guilty to sexually abusing his minor
daughter on the reservation of the tribe to which he belongs.
See 18 U.S.C. § 2243(a)(1). The district court
sentenced him below the guidelines range to 96 months'
imprisonment, and we affirmed his conviction and sentence on
direct appeal. See United States v. Schneider, 600
F.App'x 457 (7th Cir. 2015). Schneider then filed this
collateral challenge under 28 U.S.C. § 2255. He
principally argues that his trial lawyer was ineffective for
advising him that he met the statutory elements of the
offense of sexual abuse of a minor and for not explaining
that his prior conduct could be considered during sentencing.
The court denied Schneider's § 2255 motion. Because
Schneider has not shown that his lawyer's performance was
deficient or affected his decision to plead guilty, we affirm
the district court's judgment.

In May
2011, when Schneider's daughter M.S. was 15 years old,
she told a cousin that Schneider had sexually assaulted her
the previous month. M.S. said that Schneider gave her alcohol
and waited for her to pass out; when she awoke she saw that
he had pulled down her pants and was trying to place his
penis in her buttocks as she pushed him away. She added that,
since she was 8 or 9 years old, Schneider regularly had
assaulted her when he consumed alcohol or cocaine. She had in
fact accused Schneider in 2009 of having vaginal intercourse
with her then, but she later recanted that accusation, and
the authorities took no action against Schneider at that
time.

After
the cousin relayed M.S.'s accusations to the police,
Schneider was charged, but the charges changed over time.
Initially he was charged by criminal complaint with two
federal crimes. The first count, abusive sexual contact, 18
U.S.C. § 2244(a)(2), carries a maximum sentence of three
years in prison and relates to the 2011 assault. The second
count, sexual abuse of a minor, § 2243(a), carries a
maximum sentence of 15 years' imprisonment and relates to
the assault that M.S. first reported in June 2009. Later a
grand jury indicted Schneider on two counts of sexual abuse
under 18 U.S.C. § 2242(2). The first count charged that
in June 2009 Schneider "engaged in, and attempted to
engage in" unconsented "penetration and attempted
penetration of M.S.'s vulva by Schneider's
penis." The second count charged that in April 2011
Schneider had penetrated or attempted to penetrate
"M.S.'s vulva and anus" with his penis. The two
§ 2242(2) counts exposed Schneider to lengthier prison
terms than he had faced under the complaint: Sexual abuse of
a minor under § 2243(a) carries a possible sentence of
up to 15 years, while sexual abuse under § 2242(2)
carries a possible life sentence.

Facing
the possibility of two life sentences, Schneider accepted a
plea offer. In exchange for dismissal of the two §
2242(2) counts in the indictment, Schneider agreed to plead
guilty to an information charging him with a single count
under § 2243(a) based only on the April 2011 assault.
Specifically, the information charged that in April 2011
Schneider engaged in a sexual act involving contact between
his penis and the vulva of a minor.

The
parties eventually revised the plea agreement to resolve two
discrepancies. First, the agreement initially stated that
during the assault M.S. "could feel that Schneider was
attempting to place his penis in her buttocks, " and
that "his penis did make contact with her
buttocks." But the reference to "buttocks" was
inconsistent with the information, which referred to her
"vulva." Second, a "sexual act" is
defined in 18 U.S.C. § 2246(2)(A) as penetration
"between the penis and the vulva or the penis and the
anus, " whereas contact between the penis and the
"buttocks" amounts only to "sexual contact,
" see id. § 2246(3). And a conviction for
sexual abuse or sexual abuse of a minor requires a sexual
act, see § 2242(2); § 2243(a). To resolve
these discrepancies the parties agreed to amend both the
information and plea agreement to refer to contact between
Schneider's penis and M.S.'s "anus, " which
is sexual abuse of a minor under § 2243(a).

At the
plea hearing, the district court asked Schneider if he
understood the plea changes, and Schneider said that he did.
The court also explained to Schneider the potential penalties
he faced. Although Schneider's attorney had estimated a
guidelines range of 37 to 46 months' imprisonment, the
court warned Schneider five times that under § 2243(a)
it could impose a sentence as high as 15 years'
imprisonment. The court also warned Schneider that if the
guidelines range turned out to be "closer to five years
or above, " that, by itself, would not be a reason for
Schneider to withdraw his guilty plea. Schneider said he
understood this, and the district court accepted his guilty
plea.

After a
change in appointed lawyers, Schneider moved to withdraw his
guilty plea. This motion followed the release of the
presentence report, which recommended that Schneider receive
a five-level upward adjustment as a "repeat and
dangerous sex offender against minors, " U.S.S.G. §
4B1.5. Schneider's attorney argued that Schneider did not
understand when he pleaded guilty that the court could
consider M.S.'s allegations about prior sexual assaults.
The attorney also asserted that M.S. had said that she had
lied about the sexual assaults, thus giving Schneider what
the attorney called a credible claim of innocence.

The
court held an evidentiary hearing on the motion. Schneider
testified that he had pleaded guilty because he feared that,
if he didn't, the government might charge him under 18
U.S.C. § 2241(c) for assaulting M.S. before she was 12,
thereby exposing him to a mandatory minimum sentence of 30
years in prison. But he also insisted that he would not have
pleaded guilty to the § 2243(a) charge if he had known
that his prior assaults could be considered during
sentencing. The prosecutor attacked Schneider's
credibility by asking him about numerous recorded phone
conversations from jail with M.S. In these calls, Schneider
pressured M.S. to recant her accusations. When the prosecutor
asked why Schneider violated a no-contact order by repeatedly
calling M.S., he professed that he "never knew who [he]
was talking to" when he called home. In fact, Schneider
had addressed M.S. by name during some of the conversations.

The
government also presented testimony from Steven Richards, the
lawyer who represented Schneider at the plea hearing, about
his advice to Schneider. Richards said he counseled Schneider
that the government likely would recommend at least a 10-year
sentence. Richards did not recall whether he told Schneider
that he could receive a five-level upward adjustment under
§ 4B1.5. But he did advise Schneider that the assaults
likely would be disclosed in the presentence report that the
court received and that he would not be able to withdraw his
guilty plea if the guideline range was higher than the 37 to
46 months that Richards had estimated. He also concurred that
Schneider pleaded guilty to avoid the 30-year mandatory
minimum that he would face if he were charged under 18 U.S.C.
§ 2241.

The
district court denied the motion to withdraw and sentenced
Schneider. It ruled that Schneider's guilty plea had been
voluntary and that he had manipulated his daughter into
recanting her charges of sexual abuse. The court found
Schneider's credibility "very poor" in light of
the recorded phone conversations that proved he lied about
not knowing it was M.S. he spoke with over the phone. On the
other hand, the court found Richards "quite
credible" and it accepted that Schneider pleaded guilty
to the § 2243(a) charge to avoid the 30-year mandatory
minimum for a charge under 18 U.S.C. § 2241.
Schneider's unsuccessful bid to withdraw his guilty plea
cost him a three-level reduction for ...

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